The opinion of the court was delivered by: COOPER
This is an application for a writ of habeas corpus.
On February 5, 1965 relator filed the instant application and a show cause order returnable February 15, 1965 was issued. On February 8, 1965 a copy of the order and application was served on the District Attorney, New York County (as well as on Chief Probation Officer, Elmer Reeves and the New York State Attorney General). On February 10, 1965 relator was unconditionally discharged from probation, pursuant to an order of Justice Schweitzer, Supreme Court, New York County.
The threshold question before us is whether relator presently is "in custody" as required by 28 U.S.C. § 2241. Such a finding is essential to this Court's jurisdiction.
Relator contends that he was "in custody" at the time of the issuance of the show cause order.
This alone is insufficient under 28 U.S.C. § 2241. We are constrained to hold that § 2241 requires not only that relator be "in custody" at the time of the writ's filing and issuance of the show cause order, but also at the time our "jurisdiction can become effective." Parker v. Ellis, 1960, 362 U.S. 574, 576, 80 S. Ct. 909, 4 L. Ed. 2d 963 (Justices Harlan and Clark concurred; in addition, they considered the case moot on a further ground); Burnett v. Gladden, D.C.D.Oregon, 1964, 228 F. Supp. 527. Cf. Thomas v. Cunningham, 4 Cir., 1964, 335 F.2d 67.
Although unconditionally discharged from probation prior to the return date of the show cause order, relator argues he is nonetheless presently "in custody" within the meaning of 28 U.S.C. § 2241 because of "unlawful" restraints upon his liberty due directly to the challenged conviction. Relator claims that by reason of his criminal conviction he is deprived of vital prerogatives; he can no longer vote in any election in New York or in at least thirty-four other states; nor serve as a grand or petit juror in any federal court and in New York State; nor obtain licenses to engage in certain types of business; nor practice law or medicine. (Relator's brief pgs. 5-6). In addition, relator argues he would be liable for increased punishment under the recidivist statutes of New York and other states.
Relator presents the novel claim that by reason of these possible disabilities he is "in custody" within the meaning of § 2241. In effect, he is asking this Court to extend the rationale of Jones v. Cunningham, 1965, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285 to include within the meaning of "in custody" the aforementioned disabilities. As we see it, the underlying rationale of Jones is inapposite to the case at bar.
Unlike relator, Jones was released pursuant to specific restrictions and conditions. The restraints upon Jones' liberty stemmed directly from the terms of his release and not per se from his status as a convicted felon. Jones' continued liberty was conditioned upon the fulfillment of the terms of his release. Any breach of the restrictions and conditions of his release would subject him to rearrest. In a very real sense, therefore, the custody of prison was extended to the parolee's movements outside its physical confines.
Unlike Jones, relator cannot be returned to prison "to serve out the very sentence he claims was imposed upon him in violation of the United States Constitution." Jones v. Cunningham, supra, 371 U.S. at 242, 83 S. Ct. at 377. It should be observed too that the Supreme Court, in Jones, specifically distinguished the case of unconditional release. [371 U.S. at 241, 83 S. Ct. 373]
The possible disabilities of which relator complains do not stem from continued control and supervision of the correction authorities, but rather from his status as a convicted felon. To equate the former situation with the latter would all but eliminate the "in custody" requirement of § 2241 and would provide for virtually automatic federal "appellate review" of past state convictions. See Miller v. United States, 10 Cir., 1963, 324 F.2d 730; Witte v. Ferber, 3 Cir., 1955, 219 F.2d 113; In re Matheisel, 1 Cir., 1961, 289 F.2d 824. See also United States v. Bradford, 2 Cir., 1952, 194 F.2d 197, cert. denied 1952, 343 U.S. 979, 72 S. Ct. 1079, 96 L. Ed. 1371.
We note in passing that relator would not be foreclosed from challenging the constitutionality of his present conviction should he be subject to increased punishment under recidivist statutes. Burnett v. Gladden, supra.
Accordingly, since relator is not presently "in custody" the application for a writ of habeas corpus is denied.
On Petition for Certificate of ...